A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

Attorneys for the Aurora movie theater gunman on Monday painted a picture of a man single-mindedly determined to invoke his constitutional right to a lawyer after his arrest outside the theater.

Defense attorney Kristen Nelson said James Holmes asked for a lawyer three times in seven minutes during conversations with two police detectives in an interrogation room about two hours after the shootings.

“How do I get a lawyer?” Nelson said Holmes asked one time. At another: “I want to invoke the Sixth Amendment.” And another: “I want a court-appointed attorney.”

But that legal mindfulness is at odds with the picture Nelson painted of Holmes after the questioning ended.

After detectives left the room, Nelson said Holmes made puppet gestures with paper bags that investigators placed on his hands to preserve gunshot residue. She said Holmes told police he thought the bags were for popcorn. And then, Nelson said, Holmes sat so still for so long that, watching later on video, Nelson thought the recording froze.

Nelson argued Holmes was held “incommunicado” from attorneys for hours before detectives returned later in the afternoon to question him about explosives in his apartment. Meanwhile, a public defender and a private attorney hired by his mother separately spoke with a detective in trying unsuccessfully to meet with Holmes, Nelson said.

What Holmes told investigators allowed police to diffuse the bombs safely, but Nelson said those statements should not be allowed to be used against him at trial because he was not able to have an attorney present.

Add this to the details that make the prosecution of Aurora movie theater shooter so unique: Almost nobody in Colorado pleads insanity.

According to new numbers provided by the Colorado Judicial Branch, defendants entered insanity pleas in only nine-hundredths of a percent of all felony cases between 2001 and 2011. That’s 0.09%, or 9 times out of every 10,000 cases. And it is way less than studies have shown the insanity plea is used in other states.

For instance, a study of insanity pleas in eights states done in 1991 found the plea was used in between 5.7% and 0.3% of all felony indictments in those states. (One of the limitations of assessing the insanity plea, I’ve been told, is that there has been almost no research on its frequency or success rates in the last 20 years.) It is commonly said that the insanity plea occurs in about 1 percent of all cases.

Colorado’s success rate for insanity pleas across all cases where the plea is entered — about 28 percent of the time — is more in line with the national average.

So, too, is Colorado’s rate for insanity pleas in first-degree murder cases, like the Aurora theater shooting. Between 2001 and 2011, 39 of the 1,022 defendants charged with first-degree murder after deliberation pleaded insanity, according to the state numbers. That’s a rate of 3.8 percent. In about a third of those cases, the defendant was eventually found not guilty by reason of insanity, though, as we reported earlier this month, juries almost never deliver insanity verdicts in murder cases in Colorado.

A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

Today’s story on the enormity of the proposed jury pool for the Aurora theater shooting trial — it would be the largest in state history and among the biggest ever called in the United States — notes why it will be so difficult to seat a jury in the case: The scope of the tragedy involved, the amount of media attention and debates over the insanity defense and the death penalty mean many will be called but few will be eligible.

But what will it take just to handle all those prospective jurors?

The jury assembly room in the Arapahoe County courthouse seats 350 people. That’s almost enough to hold the waves of 400 jurors at a time that Judge Carlos Samour envisions coming into the courthouse.

Rob McCallum, a spokesman for the Colorado Judicial Branch, said the jury pool for the theater shooting case will be randomly selected from people in Arapahoe County’s “jury wheel.” People in the group can only be selected once per year for jury duty — hence the wheel metaphor — and the county and district courts in Arapahoe County usually summon about 1,500 people a week (spread over three different days) for jury duty for all trials. That means there will be roughly 444,000 people in the wheel when Holmes is scheduled for trial on February 3.

At a hearing this week, Samour said he intends to issue summonses for 5,000 jurors specifically for the theater shooting case, with the hope that 3,200 will show up for duty. Those 3,200 would be split over four days — the Thursdays and Fridays of two consecutive weeks. The 800 jurors a day would further be broken down into morning and afternoon sessions of 400 jurors each.

A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

As today’s story on the historically long odds James Holmes faces in his insanity plea for the Aurora theater shootings notes, Colorado is one of only 11 states in the country that places the burden of proving sanity on the prosecution.

Thirty-five states say it is up to the defendant to prove insanity. Four states — Kansas, Utah, Idaho and Montana — have abolished the insanity defense altogether or have a “guilty but insane” verdict.

James Holmes sits in the courtroom during his arraignment in Centennial on March 12, 2013. (RJ Sangosti, The Denver Post)

James Holmes wants to plead not guilty by reason of insanity to the killing of 12 people and the wounding of 70 others in the Aurora movie theater attack.

In a filing Tuesday, Holmes’ lawyers wrote they intend to “tender a plea of not guilty by reason of insanity.” Holmes would need the judge’s permission to change his plea. The plea change could come as early as Monday, the next scheduled date in Holmes’ court case.
The notice filed Tuesday starts a series of dominoes in the case.

Because a judge entered a standard not guilty plea on behalf of Holmes — and over the objection of Holmes’ attorneys — at arraignment, Holmes’ attorneys will have to show “good cause” why they should be allowed to change the plea to insanity.

Karen Pearson and Rich Orman, two of the prosecutors in the murder case against James Holmes, walk toward the courtroom. Veteran prosecutor Daniel Zook will soon join them. (Hyoung Chang, The Denver Post)

When announcing the hiring of prosecutor Daniel Zook on Wednesday, the 18th Judicial District Attorney’s office made sure to mention prominently his expertise in death-penalty cases.

“Dan is the most experienced death penalty prosecutor in the state of Colorado and a national expert on these cases,” 18th Judicial District DA George Brauchler said in a statement, which came in a press release headlined “Top Colorado Homicide Prosecutor Dan Zook Hired by Eighteenth Judicial District Attorney George Brauchler.”

The highlighting is understandable given that Zook is about to assume a chair in what could become the most closely watched death-penalty prosecution in state history. Brauchler hasn’t yet said whether he will seek a death sentence against accused Aurora movie theater killer James Holmes, whose case Zook will take on. But Zook’s hiring is a good window into Brauchler’s thinking.

Zook’s history of death-penalty prosecutions, though, offers another window — into how complicated and difficult such cases are. Zook has prosecuted four capital cases and won a death sentence in one of them. But none of the people Zook prosecuted has been executed or is currently on death row.

In short, the four prosecutions show there is no such thing as an easy death-penalty case in Colorado.

The Aurora police department on Monday night honored more than than 100 people — officers, detectives, crime scene investigators, victims advocates — for their efforts during last summer’s theater shooting.

All were recognized during a private ceremony. Even there, officials could discuss the heroics in only general terms, due to a judge’s gag order in the murder case. James Holmes is awaiting trial on 166 counts of murder, attempted murder and other crimes for the July 20 shootings, which left 12 dead and 58 wounded by gunfire.

Among the officers awarded the department’s distinguished service cross, because they “distinguished themselves by demonstrating exceptional bravery despite imminent risk of serious bodily injury or death,” were Officer Jason Oviatt, who arrested and searched Holmes outside the theater; Officer Justin Grizzle and Sgt. Gerald Jonsgaard, who went inside the theater as others rushed out, looking to help the wounded; and Officer Aaron Blue, who drove dying gunshot victims to the hospital.

Others who won the meritorious service ribbon for their “diligence and perseverance” were Detectives Todd Fredericksen and Matthew Ingui, who interviewed many victims and witnesses; Detective Randy Hansen, who reviewed 911 calls and questioned theater employees; and Detective Craig Appel, the lead detective on the case.

Those were just a few of the awardees. To see a program from the ceremony with all the names, click here: C16 Ceremony Program

Tuesday’s portion of the preliminary hearing in the murder case against Aurora theater shooting suspect James Holmes produced descriptions of the fiendishly devised explosive systems investigators say they found inside Holmes’ apartment and heart-breaking moments in two of the 911 calls to come from the theater the night of the shooting.

Here are seven more notes from Tuesday’s proceedings, ahead of what could be the hearing’s last day on Wednesday.

1. Twist of fate.

Though a detective testified Monday that Holmes bought his ticket to the new Batman movie online on July 8, Aurora Det. Craig Appel, the lead detective on the case, said Tuesday Holmes bought the ticket the night of July 7. For whatever reason, Appel said, Holmes’ ticket printout errantly showed the purchase date as July 8.

That’s not all that was inconsistent with the ticket and Holmes’ actions. Holmes’ ticket, Appel said, was actually purchased for theater 8. Holmes instead went into theater 9 next door, where the movie started about five minutes later that night. All of those killed and 55 of the 58 people wounded by gunfire on July 20 were in theater 9.

Appel did not say if police have any explanation for the switch in theaters.

Later on Tuesday, Sgt. Matthew Fyles — Appel’s supervisor — said investigators have never been able to put a precise number on the people in theater 9 or theater 8, he said. Theater 9 held a little over 400 people. Fyles said detectives believe between 370 and 380 people were in theater 9 when the shooting began — and an equal number were next door in theater 8.

But Fyles said it is likely some of those present haven’t come forward to police, preventing investigators from arriving at a precise figure.

Monday’s opening day of the preliminary hearing in the Aurora theater shooting murder case offered numerous new insights into the tragedy and the evidence against James Holmes. In this morning’s Denver Post, we have two stories — one about the investigation details revealed in court Monday and another about the heroic actions of police officers the morning of the shooting. (Click here to read an extended version of that story.)

But, after nearly six hours of testimony Monday, there were details that did not find their way into one of those two stories. Here are seven notes from Day 1 of the preliminary hearing:

1. A curious cross-examination.

The most significant moment in the preliminary hearing may have also been its most oddly out of place. Prosecutors Monday called two doctors from the Arapahoe County coroner’s office to testify about the wounds suffered by the victims slain in the shooting. After the first doctor testified, Holmes’ attorneys did not ask any questions.

In many instances throughout the day, the detectives and investigators testifying on behalf of the prosecution left little for the defense team to do. Those witnesses were there to describe the scene; they did not say anything that directly implicated Holmes. And, thus, their testimony meant there was little for the defense to rebut.

So it was somewhat unexpected when, after prosecutors finished questioning Arapahoe County Coroner Michael Dobersen, defense attorney Daniel King rose to ask some questions of his own. Where he went with his questions was even more unexpected.

King asked how long the autopsies took — they lasted between an hour and a half and over four hours. He asked about Dobersen’s experience as a coroner — Dobersen is one of the most respected forensic pathologists in the nation.

And then King asked whether anything about the wounds Dobersen observed could speak to the state of mind of the person who inflicted them. What kinds of stories do bullet holes tell? Dobersen seemed puzzled.

“You’re not drawing any conclusions about the mental state of the perpetrators by your autopsy, are you?” King asked.

“No,” Dobersen responded.

It was the best signal yet that the defense likely intends to offer an insanity defense in the case. Its odd placement in the hearing only made it stand out that much more clearly.